Blakeney v. Easterwood

REYNOLDS, J. [798] OPINION Only two questions are involved in a decision of this case, namely, . whether plaintiff had the right to amend his petition and whether his cause of action was prescribed. It is the settled jurisprudence of Louisiana that amendments of pleadings should be liberally allowed so as to accomplish the objects of justice. Changing the amount sued for from $700.00 to $600.00 was not to the prejudice but rather to the advantage of defendant, and the evidence shows that the reduction was made as a concession to defendant and for the purpose of eliminating possible controversy as to the correct amount of the note. In our opinion, the amendments allowed might well have been made instantor, but all three of them were formally allowed by order of court, and the first two were formally served on defendant. “Code of Prac., Art. 419, allowing ‘after issue joined’ amendment with leave of court, indicates that before issue joined the plaintiff may amend without any need of leave of court.” Tarver vs. Quinn, 149 La. 368, 89 South. 216. “Moreover * .* * until the defendant has appeared there is nothing to prevent the filing of as many supplemental petitions as the plaintiff may see fit to file.” Lehman Dry Goods Co. vs. Lemoine, 129 La. 382, 56 South. 324. C. E. Easterwood being the person intended to be sued by plaintiff, service on him before prescription had run of citation addressed to C. R. Easterwood interrupted the running of prescription. In Satterley vs. Morgan, 33 La. Ann. 846, the suit was against one Charles Morgan, an absentee; citation was issued to Charles Morgan, and the sheriff’s return thereon showed service “on Charles Morgan, through A. C. Hutchinson, , his agent, in person”. The defendant excepted to the service as illegal. The exception was sustained, with leave to plaintiff to perfect citation. The petition was thereupon amended so as to allege that Charles Morgan was a resident of New York and was represented in Louisiana by an agent, A. C. Hutchinson, and a new citation, addressed to “Charles Morgan, through A. C. Hutchinson, agent” was issued thereon and served on the latter. Defendant thereupon filed a plea of prescription. As the prescriptive period had run after the service of the first and before the service of the second citation, the question of the sufficiency of the first citation to interrupt prescription was presented; and the court held that the first citation was sufficient to interrupt prescription, saying: “A long line of authorities have established a distinction between the technical sufficiency of a citation, as a basis for the maintenance of proceedings and judgment, and its sufficiency for the purpose of interrupting prescription. Citation for the purpose of interrupting prescription needs not to be technically perfect either in form or service. “For the ordinary purposes of a suit and judgment a citation or judicial demand addressed to- a person other than the one intended to be sued, though delivered to the latter, is ineffectual; but, where such demand has been served upon [799] the right person and conveys full information, a slight error in the designation or description of the person intended to be sued, which could mislead no one, will not prevent its interrupting the prescription of the claim so demanded.” Babin vs. Lyons Lumber Co., 132 La. 873, 61 South. 855. .In that case the correct name of the person intended to be sued was Lyons Lumber Company and the petition and citation described it as J. L. Lyons Lumber Company. See also: Gueble vs. Town of Lafayette, 118 La. 494, 43 South. 63; Woodall vs. L. Ry. & Nav. Co., 149 La. 903; 90 South. 238; Anding vs. T. & P. Ry. Co., 158 La. 412, 104 South. 190; City of New Orleans vs. Saloy, 11 La. Ann. 420. The first citation had the effect of interrupting the running of prescription and the petition and citation have been amended so as to correctly designate the defendant, the error was cured, the cure related back to the ■ date of service of the first citation and therefore the plea of prescription was properly overruled Plaintiff testified that he was the owner and holder of the note sued on; that it was dated August 3rd or 4th,' 1917; that it was for $700.00; that it was lost or destroyed at Tulsa, Oklahoma; that it was made payable to B. B. Blakeney; that it stipulated for the payment of 10% as attorney’s fees in case of legal proceedings to collect it; that it bore six per cent interest; that he had not negotiated it; and that it disappeared from his office in Tulsa some time before January, 1920; that himself and partner had collected for account of defendant $200.00; that he had deducted a fee of $25.00 therefrom and credited the balance of $175.00 on the note sued on which at that time, April 21, 1919, amounted, in principal and interest, to $726.00; that he so informed defendant by letter of that date; that he had subsequently met defendant and discussed the matter with him and that it was satisfactory to defendant and that he had endorsed the credit on the note in defendant’s presence. J. H. Maxey testified that he had been the partner of the plaintiff; that he had seen the note sued on; that it was payable to plaintiff, was dated some day in June, July or August, 1917, at Tulsa, Oklahoma; that it was due one year after its date, bore 6% interest and stipulated payment of 10% attorney’s fees; that the firm of Blakeney & Maxey represented defendant in a suit in the District Court of Tulsa county, Oklahoma, against one M. E. McBride; that the suit was compromised for $200.00; that defendant directed him to deduct his fee and pay the balance of the $200.00 to plaintiff to be credited on the note sued on; that he deducted $25.00 as his fee and on April 21, 1919, paid over to plaintiff $175.00. L. Wheeler testified that in 1920 or 1921, after defendant had moved from Tulsa, Oklahoma, to Shreveport, Louisiana, he had a conversation with defendant in Wichita Palls, Texas, and that in that conversation defendant told him he had not paid plaintiff the note that is the subject of this action and that he, defendant, was entitled to a credit thereon in connection with money that plaintiff’s firm had collected for him. Proof was also made of publication in the “Daily Oklahoman” and “Oklahoma Times”, two newspapers of general circulation in the State of Oklahoma, of the loss of the note sued on. Defendant, in his testimony, admits having given plaintiff his promissory note, [800] says it was in payment for an automobile sold him by plaintiff, that it was for $600.00 and that he made the note and mailed it to plaintiff on July 19, 1917, and that it was due one year after its date. He denies having authorized the application of the $175.00 collected by plaintiff and his partner for his account as a credit on the note and says he had no knowledge of the collection until just before this suit was brought when plaintiff informed him about it and that he then disapproved of the transaction. Besides 6% interest on the principal until paid the note stipulates for payment of 10% on the amount of both as attorney’s fees. Plaintiff has asked for damages as for a frivolous appeal, but they cannot be allowed. We find no error in the judgment appealed from and it is therefore affirmed.